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In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –

the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;

the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and

the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.

Two decisions of the Land and Environment Court have recently considered what defines ‘land’ on which a heritage item is situated, and what defines the ‘land’ on which an extractive industry was being carried out. Both cases are a timely reminder that Courts will not consider ‘land’ by reference to just their Torrens title lot, but also consider the scope and purpose of any relevant statutory provisions involved in the determination of the DA.

In this case, the Court was considering an integrated development application seeking consent to conserve a heritage listed building (both the building and its curtilage being listed on the State Heritage Register), and construct a 16 storey residential apartment building on a differing part of the same Torrens Title Lot. The Heritage Council provided general terms of approval regarding the conservation of the building, but also provided some comments regarding the construction of the residential building on the same site. The applicant began proceedings on the basis that the consent authority was unable to properly determine the DA without the Heritage Council indicating whether it would provide terms of approval in relation to the entire DA.Continue reading…

On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.

The current laws on illegal dumping, transporting, and recycling of asbestos waste

The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid].Continue reading…

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not.

By way of background – a “Clause 4.6” in the standard instrument LEP which permits a consent authority to grant development consent for a development that would contravene a development standard, where the consent authority is satisfied of the following two standards:

a written request from the applicant adequately demonstrating that the compliance with the development standard is unreasonable or unnecessary and that there is sufficient environmental planning grounds to justify the contravention; and

On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.

The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.

Background

On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017.

The deferred commencement condition had to be fulfilled to Council’s satisfaction by 17 August 2017. The applicant submitted its FERP to Council in April 2017. Following this submission, Council advised the applicant that the deferred commencement condition had not been satisfied to the requisite standard on 20 June 2017.Continue reading…

Recently the Land and Environment Court has considered the newly introduced provision of the Environmental Planning and Assessment Act which enables planning panels involved in application decisions to “direct and control” the Council involved.

In this landmark case, the Court found the Council was indeed subject to both the direction and control of the Planning Panel, but furthermore that when the application goes before the Court in order to enter into an agreement to solve proceedings, that the Panel also becomes joined as a party in this process.

By way of a brief background, this case involved a Class 1 Development application to expand an existing landfill in the Cootamundra-Gundagai Local Government Area.

As per the old EPA Act, the development application was required to be heard at the time by the Southern Joint Regional Planning Panel (the JRPP Panel), and at the time the panel determined the application by way of refusal. Upon this decision, the Applicant then filed an appeal with the LEC and the Planning Panel was informed as per the requirements under the EPA Act.Continue reading…

On 6 July 2018, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) will be amended to include the Low Rise Medium Density Housing Code (Medium Density Code). The effect of the Medium Density Code is to expand the scope of what is considered ‘complying development’ under NSW legislation.

The amendments to the Codes SEPP are part of the NSW Government’s overall agenda to increase affordable housing within the State by streamlining the development consent process.

What is Complying Development?

Complying Development is development which can obtain development consent by having regard to and meeting specified predetermined development standards. The predetermined development standards include criteria such as minimum lot size, setbacks, building height and floor space ratio.

A development can only be complying development if it is permitted with consent within that zone. If it is permitted and meets the predetermined development standards, the proposed development can be approved by either Council or a qualified private certifier which issues a complying development certificate.Continue reading…

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